PROCEDURAL
POSTURE: The defendant was convicted in Superior Court (Cochise) of
first-degree murder, burglary, controlling property of another, and kidnapping for one
victim, first degree murder, burglary and kidnapping of the second victim, and escape. The
defendant was sentenced to death for the murder of the second victim, and prison on the
other counts. This is his automatic, direct appeal to the Arizona Supreme Court.

AGGRAVATING CIRCUMSTANCES:

(F)(1) (Prior Life or Death Felony) - UPHELDThe (F)(1) finding was upheld without discussion. The finding was not contested
on appeal.

(F)(5) (Pecuniary Gain) - UPHELDThe trial court found pecuniary gain under (F)(5) and the defendant did not
contest that finding. The Court here summarily found the existence of this aggravating
circumstance without discussion. The defendant burglarized the home of William Prince and
then shot him in the head when Prince arrived home. He stole several items from the home.
Prince was the first murder victim. After escaping from jail, the defendant entered the
home of Dale and Mary Duke. When the Dukes arrived home, the defendant shot Dale Duke, the
second murder victim, and stole items from the home.

(F)(7) (Murder Committed while in Custody) - UPHELDThe (F)(7) finding was upheld without discussion; it was not raised on appeal.
The defendant had escaped from the Cochise County jail while awaiting trial. After his
escape, he entered the home of the victims and shot and killed one of them.

(F)(9) (Age of Victim) - UPHELDThe (F)(9) finding was upheld without discussion. The defendant was an adult and
the victim was more than seventy years of age at the time of the murder.

MITIGATING CIRCUMSTANCES:

The Court found that the following mitigating circumstances
existed, but were not sufficiently substantial to call for leniency:

PROCEDURAL POSTURE:The defendant
was convicted in Superior Court (Pima) of two counts of first-degree murder and was
sentenced to death for each of the murders. This is the defendant's automatic, direct
appeal to the Arizona Supreme Court.

AGGRAVATING CIRCUMSTANCES:

(F)(1) (Prior Life or Death Felony) - REVERSEDThe (F)(1) finding is inapplicable in this case. The Court noted that the
(F)(1)
finding is not interchangeable with the (F)(8) finding for multiple homicides.

(F)(2) (Prior Violent Felony) - NOT FOUNDThe Court refused to consider whether (F)(2) was intended to apply only to prior
convictions that are separated by time and space from the offense for which the defendant
is now being sentenced to death.

(F)(3) (Grave Risk of Death to Others) - REVERSEDThis aggravating circumstance does not exist when the defendant actually intended
to kill multiple victims; the (F)(8) aggravating circumstance allows for consideration of
multiple victims.

(F)(6) (Heinous, Cruel or Depraved) - UPHELD (as to
one victim only)

Cruel: Upheld (as to one victim, Susan England).
The trial court did not find cruelty as to the second victim, Teresa Acuna. Mental Anguish: Found. The medical examiner's testimony "strongly
suggested" that a blow to the head of one victim, Susan, did not knock her
unconscious. That conclusion is supported by defendant's statements about the struggle he
witnessed. Upon these brief facts, the Court found cruelty, stating that "[t]his
young woman clearly suffered both mental and physical pain." 187 Ariz. at 354.Physical Pain: Found. See Mental Anguish.

Heinous or Depraved: Reversed (as to both victims).Gratuitous Violence: Not Found. Although the trial court referred to
"multiple gunshot wounds" in its special verdict, there was insufficient
evidence in the record to support a gratuitous violence finding beyond a reasonable doubt.
Medical testimony did not establish which shot was fatal, so the Court could not conclude
that "injuries were inflicted beyond those necessary to cause death." 187 Ariz.
at 354. Senselessness: Found. However, senselessness and helplessness, without more, were
not sufficient to support a finding of heinousness or depravity.Helplessness: Found. However, senselessness and helplessness, without more, were
not sufficient to support a finding of heinousness or depravity.

(F)(8) (Multiple Homicides) - REVERSEDHere, two women were killed in the same apartment at the same time, but the
statutory factor did not exist when these murders were committed in 1982. The Arizona
Supreme Court rejected the state's suggestion to substitute the (F)(1) aggravator or
(F)(2) aggravator, though the trial court had expressly found neither factor applied in
this case. The Court noted that "(F)(8) plainly refers to 'other homicides' committed
'during the commission of the offense.' Thus, it specifically addresses contemporaneous
killings," which are not addressed by any other aggravating factor.

MITIGATING CIRCUMSTANCES:

There is no discussion of mitigating circumstances in this
case because the Court reduced each of the death sentences to life imprisonment. The Court
concluded that an Enmund/Tison finding could never be made in this case, and
therefore, vacated the death sentences. The Court did note, however, that the views of the
victims' family members who may not have wanted the death penalty imposed was not relevant
in mitigation because it was not related to the defendant or the circumstances of the
crime.

JUDGMENT: Convictions affirmed.
Because no aggravating circumstances remained on count two, Teresa Acuna, and only one
aggravating circumstance remained on count one, Susan England, and because the Court
concluded that an Enmund/Tison finding could never be made beyond a reasonable
doubt in this case, each of the death sentences were reduced to life imprisonment without
the possibility of parole for twenty-five years, to run consecutively.

PROCEDURAL POSTURE: The defendant
was convicted in Superior Court (Maricopa) of four counts of first-degree murder, two
counts of aggravated assault, two counts of armed robbery and one count of unlawful flight
from a law enforcement vehicle. He was sentenced to death on three of his four murder
convictions. This is his automatic, direct appeal to the Arizona Supreme Court.

AGGRAVATING CIRCUMSTANCES:

(F)(1) (Prior Life or Death Felony) - UPHELDThe Court rejected the defendant's argument that this aggravating circumstance
applies only to convictions obtained outside the state of Arizona.

(F)(2) (Prior Violent Felony) - UPHELDThe defendant was convicted of four counts of first-degree murder, two counts of
aggravated assault, two counts of armed robbery, and once count of unlawful flight from a
law enforcement vehicle. He was sentenced to death on three of the four murder counts. The
three murders for which he received the death sentence occurred the same afternoon in a
trailer park. The fourth murder occurred earlier that morning in a convenience store. The
Court held that the defendant's armed robbery and aggravated assault convictions satisfy
(F)(2) because they were entered prior to sentencing. (F)(2) applies to convictions
entered prior to sentencing, regardless of the order in which the underlying crimes
occurred or the convictions entered. The aggravated assault conviction applied because the
specific subsection under which the defendant was convicted required the use or threat of
violence.

(F)(8) (Multiple Homicides) - UPHELDThe defendant, in a "homicidal rampage," killed four people on the same
day but in different places. One was a store clerk killed that morning, and three others
were three women who lived in a nearby trailer park killed that afternoon. The Court noted
that the trial court had correctly applied the aggravating circumstance to three of the
murders because they were committed in "a continuous course of conduct." The
Court said that, to find the (F)(8) aggravating circumstance, it looks to the temporal,
spatial and motivational relationships between the capital homicide and the collateral
homicide(s), as well as the nature of that homicide and the identity of that victim.

MITIGATING CIRCUMSTANCES:

The Court agreed with the trial court that the following
mitigating circumstances existed and were sufficiently substantial to call for leniency
for one of the murders, but not for the other three murders.

PROCEDURAL POSTURE:The defendant
was convicted in Superior Court (Pima) of first-degree murder, kidnapping, and sexual
abuse. He was sentenced to death for the murder, but on direct appeal, the Arizona Supreme
Court reversed the murder and kidnapping convictions and remanded for a new trial. State
v. Detrich, 178 Ariz. 380, 873 P.2d 1302 (1994). At the retrial, defendant was
convicted of first-degree murder and kidnapping, and was sentenced to death for the
murder. This is the defendant's automatic, direct appeal to the Arizona Supreme Court.

AGGRAVATING CIRCUMSTANCES:

(F)(6) (Heinous, Cruel or Depraved) - UPHELD

Cruel: Upheld. "In determining
whether a murder was especially cruel, we must view the entire murder scenario, not just
the final act that killed the victim." 188 Ariz. at 67.Mental Anguish: Found. Testimony established that the victim appeared terrified
as defendant told her she was going to die and dragged her to the car with a knife to her
throat. The Court found that the victim suffered mental distress, noting that "anyone
in the victim's situation would have been uncertain as to his or her ultimate fate."
188 Ariz. at 68. Physical Pain: Found. The Court found "overwhelming evidence" of the
victim's consciousness throughout the crime, including defensive wounds on her hands. The
victim had forty cutting wounds on her hands, chest, face, neck, abdomen, and thigh. The
cut to her throat extended from ear to ear, slashing through her voice box, esophagus, and
into her cerebral column. "After her throat was slit, she attempted to answer
defendant's questions, but was able only to gurgle in response." 188 Ariz. at 67. The
victim also had blunt force injuries to her nose, jaw, and scalp, as well as scraping and
tearing of the lining of her mouth. The Court found that "[s]he must have suffered
excruciating pain before she died." 188 Ariz. at 68.

Heinous or Depraved: Upheld.Gratuitous Violence: Found. The Court held that only three stab wounds
were potentially fatal, leaving thirty-seven unnecessary and excessive wounds, which
constituted gratuitous violence. Relishing: Found. "Defendant's statement to [co-defendant], `It's dead, but
it's warm. Do you want a shot at it?' clearly shows that defendant relished the murder.
The trial court found that this statement showed an abhorrent lack of regard for human
life, and we agree." 188 Ariz. at 68.Senselessness: Found. Defendant was seeking repayment for money he wasted on bad
drugs. Murdering the victim was not only unnecessary to achieve this goal, it was
counterproductive. Helplessness: Found. Defendant held a knife to the throat of the unarmed and
partially clothed victim while he dragged her to the car. She had no means of escape.
While in the car, defendant was on top of her, abusing and stabbing her, and she was
unable to defend herself.

MITIGATING CIRCUMSTANCES:

The Court found that the following mitigating circumstances
existed, but were not sufficiently substantial to call for leniency:

(G)(1) Significant Impairment [alcohol use at time
of crime]
Remorse

The Court found the defendant failed to prove by a
preponderance of the evidence the existence of the following as mitigating circumstances:

PROCEDURAL POSTURE:The defendant
was convicted in Superior Court (Pima) of two counts of first-degree murder and was
sentenced to death for each of the murders. This is the defendant's automatic, direct
appeal to the Arizona Supreme Court.

AGGRAVATING CIRCUMSTANCES:

(F)(5) (Pecuniary Gain) - UPHELDMann and his girlfriend sold drugs from their apartment in Tucson. Mann told his
girlfriend of his plan to "rip off" his friend, Alberts, who was also involved
in cocaine dealing. Mann arranged to sell a kilogram of cocaine to Alberts for $20,000.
Mann planned to take the $20,000 from Alberts and give him a shoebox filled with newspaper
instead of cocaine. Mann knew he would have to kill Alberts after completing the exchange.
The plan changed when Alberts arrived with another man, Bazurto. After trading the money
for the shoebox, Alberts lifted the lid of the box, and Mann shot him and then Bazurto.
The Court rejected Mann's claim that the (F)(5) finding was erroneous because Bazurto
arrived unexpectedly and killing him was not part of the original "rip off"
plan. When Bazurto arrived unexpectedly, Mann made a choice, after a period of thought, to
kill both men in order to go through with the plan. Stealing the $20,000 was the motive
for the murders of both Alberts and Bazurto.

(F)(6) (Heinous, Cruel or Depraved) - UPHELD

Cruel: Upheld.Mental Anguish: Found. The Court did not distinguish the facts
supporting mental anguish from those supporting physical pain, but addressed the issue
that consciousness must be proven to establish cruelty. Testimony from defendant's
girlfriend, who was present for the murders, established that one victim, Bazurto, was
alive and conscious for three to five minutes. The trial judge found this testimony
persuasive, though the medical examiner could not concur. The medical examiner testified
that Bazurto probably was conscious for only ten to twenty seconds and may have been in
shock. The trial court found that the girlfriend's testimony of three to five minutes was
more persuasive. The Arizona Supreme Court deferred to the factual findings of the trial
judge and upheld the cruelty finding.Physical Pain: Found. See Mental Anguish.

Heinous or Depraved: Not addressed.

(F)(8) (Multiple Homicides) - UPHELDThe defendant was convicted of shooting two people in a drug rip-off. The Court
rejected the argument that this factor constitutes elements of the offense and that it
therefore should not be used to enhance the sentence.

MITIGATING CIRCUMSTANCES:

The Court found that the following mitigating circumstances
existed, but were not sufficiently substantial to call for leniency:

Difficult Childhood/Family History
Family Ties
Good Character [changed lifestyle after murders, quit using drugs, held steady job]

The Court found that the defendant failed to prove the
existence of the following as mitigating circumstances:

Cooperation; Lack of Criminal History;
Sentencing Disparity; and Life Sentence available

PROCEDURAL POSTURE:The defendant
was convicted in Superior Court (Pima) of sexual assault, child abuse, and first-degree
felony murder, and was sentenced to death for the murder. This is the defendant's
automatic, direct appeal to the Arizona Supreme Court.

AGGRAVATING CIRCUMSTANCES:

(F)(6) (Heinous, Cruel or Depraved) - UPHELD

Cruel: Upheld.Physical Pain: Found. The Court found that the victim suffered physical
pain for many hours after defendant assaulted her. "She was crying and vomiting and
had bruises on her face, fingers, and hands. The emergency room physician testified that
the blow to Rachel's bowel would have caused great pain initially and would have continued
to cause pain to a lesser extent thereafter." 188 Ariz. at 399. The victim also
suffered painful genital injuries, as well as defensive wounds that establish that she was
conscious during the beating. "It is beyond question that Rachel suffered especial
cruelty within the meaning of section 13-751(F)(6) during her terrifying last day of
life." 188 Ariz. at 400.Knew or Reason to Know that Victim Would Suffer: Found. "When the suffering
is experienced after the infliction of a fatal wound, that suffering must have been
`objectively foreseeable' to support a finding of cruelty. The defendant's subjective
intent to cause suffering is irrelevant." 188 Ariz. at 399 (citations omitted). Here,
defendant knew how severely he had beaten the victim. She was struck dozens of times by
fists, elbows, and perhaps blunt instruments. The victim was physically ill for the
remainder of the evening. Defendant told others that he had taken the victim for medical
attention when he had not, which prevented others from seeking the medical attention the
victim desperately needed. The Court found that defendant intentionally extended the
victim's suffering by ensuring she did not receive medical care.

Heinous or Depraved: Not addressed.

(F)(9) (Victim under Fifteen Years of Age) - UPHELDThe defendant was an adult and the victim was four years old when she was beaten
and sexually assaulted. She ultimately died from her injuries. The Court found the
existence of this aggravator with no discussion beyond establishing the defendant's and
the victim's respective ages.

MITIGATING CIRCUMSTANCES:

The Court found that there were no mitigating circumstances
sufficiently substantial to call for leniency. More specifically, the Court found that the
defendant failed to prove by a preponderance of the evidence the
following as mitigating circumstances:

(G)(1) Significant Impairment
Impairment [methamphetamine use at time of murder]
Difficult Childhood/Family History
Responsibility of victim's mother [for not taking child to hospital for treatment]

PROCEDURAL POSTURE: The defendant
was convicted in Superior Court (Mohave) of first- degree murder, kidnapping, theft and
robbery in December of 1987. He was sentenced to death for the murder and to prison on the
other noncapital convictions. On direct appeal to the Arizona Supreme Court, the
noncapital convictions and sentences were affirmed, but the court reversed one aggravator
and remanded the case back to the trial court for resentencing. State v. Henry,
176 Ariz. 569, 863 P.2d 861 (1993). On remand, the trial court reimposed the death
penalty. This is now the automatic appeal from that resentencing.

AGGRAVATING CIRCUMSTANCES:

(F)(2) (Prior Violent Felony) - UPHELD The defendant's prior conviction for armed robbery in California could count as
an (F)(2) circumstance because it involved the threat of violence. The Court again
rejected the defendant's argument that the crime, as defined by California statute, does
not necessarily involve the use or threat of violence against another person. The Court
also rejected his argument that the twenty-five year old conviction was too remote. The
Court noted that the language of (F)(2) does not expressly provide a time limit.
The Court assumed that the omission of a time limit was intentional.

PROCEDURAL POSTURE:The defendant
was convicted in Superior Court (Maricopa) of two counts of first-degree murder, one count
kidnapping, sexual assault, armed robbery, and theft. He was sentenced to death for each
of the murders. This is the defendant's automatic, direct appeal to the Arizona Supreme
Court.

AGGRAVATING CIRCUMSTANCES:

(F)(1) (Prior Life or Death Felony) - UPHELDThe defendant argued that (F)(1) could not apply because the murder was committed
before the murder conviction for which he was sentenced here. The Court said that convictions
entered prior to sentencing may be considered regardless of the order in which the
underlying crimes occurred or the order in which the convictions were entered. For
(F)(1)
purposes, a conviction occurs upon determination of guilt.

(F)(2) (Prior Violent Felony) - UPHELDThe defendant was convicted for aggravated robbery and aggravated assault, crimes
committed after the murders for which he was sentenced to death. The defendant was
convicted of those crimes before he was convicted of murder. Citing State v. Gretzler,
135 Ariz. 42, 57 n.2, 659 P.2d 1, 16 n.2 (1983), the Court held that a sentencing
court may consider any convictions entered previously without regard to the order of the
underlying crimes. The statutory definitions of both aggravated robbery and
aggravated assault necessarily involved the use or threat of violence.

(F)(5) (Pecuniary Gain) - UPHELDThe defendant did not challenge the trial judge's pecuniary gain finding. The
first murder occurred after the defendant and codefendant ordered a pizza to be delivered
to a vacant house. When the victim arrived, she was confronted with a rifle, made to
remove her clothing, and abducted into the desert. Her car was damaged. The codefendant
sexually assaulted the victim twice before she was forced to withdraw money from an ATM
machine. The defendant then shot and stabbed her. The second murder, only nine days later,
involved the defendant and the same codefendant calling for a cab. After the victim drove
the defendant to his destination, the defendant pulled out a gun and demanded money. The
defendant fired the gun nine times and hit the victim four times. He then removed money
from the victim's pockets, dumped the body and damaged the abandoned cab.

(F)(6) (Heinous, Cruel or Depraved) - UPHELD
as to Reynolds
REVERSED as to Lacey

Cruel: Not addressed.

Heinous or Depraved: Reversed as to David Lacey.Gratuitous Violence: Not found. The state argued that the trial court
found gratuitous violence, in addition to senselessness, because the special verdict
mentioned that four shots had hit the victim, one of which was a "hard contact"
shot, and other factors supported the senselessness finding. The Court held that the
record did not establish the time frame or sequence of the gunshots, and therefore, does
not establish beyond a reasonable doubt that violence beyond that necessary to kill was
used.Senselessness: Found. The Court emphasized that for a finding of heinous, cruel
or depraved to be established, the murder must be above the norm of first-degree murders.
Further, senselessness and helplessness, without other circumstances, are usually not
sufficient to support a finding of heinousness or depravity. A quick succession of
gunshots does not present the unique or limited circumstances in which senselessness or
helplessness would establish heinousness or depravity. Here, defendant fired nine shots,
four of which struck the victim, David Lacey, during a robbery. The Court found this fact
pattern to fit most closely with cases in which senselessness did not establish
heinousness or depravity.

MITIGATING CIRCUMSTANCES:

The Court found that the following mitigating circumstances
existed, but were not sufficiently substantial to call for leniency:

Age
Lack of Criminal History
Difficult Childhood/Family History
Cooperation
Remorse

The Court found that the defendant failed to prove by a
preponderance of the evidence the existence of the following as mitigating circumstances:

Follower
Good Character

JUDGMENT: Convictions and sentences
affirmed.

Comment: A.R.S. § 13-751(F)(6) was
established as to Linda Reynolds murder, though not clearly discussed, and was reversed as
to David Lacey murder. When deciding whether F(6) has been established, the trial judge
"must consider more than the categories provided by Gretzler. `[J]ustice cannot be
reduced to a theorem.' In order to determine whether a defendant's actions demonstrate a
vile state of mind at the time of the murder, a trial judge must examine `the factual
differences between Tison, Ortiz, and Clark [cases finding
heinousness and depravity] on the one hand, and Lujan and Blazak [cases
where heinousness and depravity finding was reversed] on the other.'" 944 P.2d at
1219-20 (quoting State v. Mata, 185 Ariz. at 326, 916 P.2d at 1041). The Court
then elaborated on the factual differences among the above listed cases, distinguishing
when heinousness or depravity is established and when it is not.